What Should Congress Do After Hobby Lobby?

What can – – – and should – – – Congress do after “Hobby Lobby”?
In a word: lots!

You’ve most likely heard about the United States Supreme Court’s divided and divisive opinion in “Hobby Lobby” – – now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell – – – on the last day of the Court’s Term in 2013-2014. The majority, in an opinion authored by Justice Samuel Alito, held that closely held corporations (or their owner/shareholders) are entitled to a religious exemption from the federal mandate to provide health insurance to employees that includes contraceptive coverage.

image via

But what is getting lost in this discussion is that not only is the provision of contraceptive coverage based on federal laws (“Obamacare” and the regulations passed pursuant to it), but so too is the basis for the religious exemption. The Religious Freedom Restoration Act, RFRA, is the statute interpreted by the Court to provide religious “freedom” to for profit corporations like Hobby Lobby.

Importantly, the decision is an interpretation of the word “person” in the RFRA statute, passed by Congress in 1993. Equally important, the decision is an application of the requirement under RFRA that a person’s religion be “substantially burdened.” And perhaps most important, the decision is an application of RFRA’s ultra-strict scrutiny that changed otherwise applicable First Amendment doctrine. Under RFRA, the government interest must be compelling and that interest must be effectuated by the “least restrictive means, even if the government action is a religiously neutral one of general applicability.

Given that the Court is simply interpreting a statute – – – and not the Constitution – – – Congress can amend the statute to nullify the Court’s interpretation. Or Congress could repeal the statute – – – a statute meant to change First Amendment doctrine after all – – – in its entirely and restore the First Amendment. Indeed, the repeal statute could be called the First Amendment Restoration Act.

I further discuss the option Congress has in a post for the London School of Economics blog. [Update: And here’s more]

Meanwhile, I’ll be more than interested in what New York’s Senator Kirsten Gillibrand has to say.

Your First Amendment Rights to Reveal Corruption

Frank Duveneck, Whistling Boy, circa 1872

Imagine this: you’re hired as a director of a program for at-risk youth as part of a CUNY initiative. When you take a look at the finances, you discover there’s a state legislator listed on the payroll. You soon figure out this legislator has never performed any work for the program. You talk to some administrators, but you are warned by them – – – and then by a university lawyer – – – that terminating the legislator’s employment could have negative repercussions for both you and the university. Nevertheless, you do terminate the legislator from the payroll. She tells people she is going to “get back” at you.
Instead, she’s investigated. You testify at the grand jury and at her two criminal trials. She’s convicted. You’re fired by the same administrator who warned you not to get involved.

Those are the facts, more or less, in Lane v. Franks, decided by the United States Supreme Court. The Court held that Edward Lane, the employee, did have a First Amendment right not to be retaliated against for his testimony on the criminal trial. However, the Court held that the administrator – – – Steve Franks, president of the Alabama community college system who fired Lane – – – was not personally liable for damages because Lane’s First Amendment rights were not sufficiently “clearly established” at the time of the termination.

It’s a limited but important victory for the protection of the rights of university and other public employees.

More of my comments about the case and the opinion are on Constitutional Law Professors Blog here and on SCOTUSBlog here.

Trademark of Disparaging Football Team Name Canceled – – – What Might this Mean for Dykes on Bikes?

A divided Trademark Trial and Appeal Board canceled the trademark of the term “redskins” as violative of federal trademark law prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging – – – and was so at the time the trademark was approved.

There’s more about the opinion in Blackhorse v. Pro-Football, Inc. on the Constitutional Law Professors blog here.

At the heart of the issue is whether the term is disparaging and – – – perhaps most importantly – – – who gets to decide. In the majority opinion, this passage is especially pertinent:

Respondent [Pro-Football, Inc.] has introduced evidence that some in the Native American community do not find the term “Redskin” disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term “Redskins” to be disparaging when the respective registrations issued. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.

The substantial composite in this case, according to the evidence, was at least 30% of the Native American population or, as the majority phrased it, “1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990” when the trademark issued.

The meanings of disparagement and offensiveness implicate our ideas of equality, democracy, and language. In an essay, Democracy and Antigone, I wrote about the “dykes on bikes” controversy that ensued when the organization sought to trademark its name and the trademark officer denied it because she found “dyke” was offensive term (and had a dictionary to support it). The trademark office eventually relented. I also wrote about how the Olympics Committee successfully prevented the “Gay Olympics” from using the term “Olympics” because “gay” disparaged the “Olympics” trademark.

Meanings do change. But we all know that. Just as we all know that who decides what meanings matter changes.

Scalia’s Establishment Clause

Justice Antonin Scalia via

Dissenting from the denial of certiorari review in Elmbrook School District v. Doe, a case presenting the question of whether a school can hold its graduation in a church building, Justice Scalia had this to say:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Scalia’s view threatens to reduce the Establishment Clause of the First Amendment to a matter of personal taste. The Court’s denial of the petition for certiorari, however, lets stand the Third Circuit decision that held the graduation ceremony on a church did violate the Establishment Clause of the First Amendment.

There’s more about the case on the Constitutional Law Professors blog here.

United States Supreme Court to Hear Facebook Threats in Domestic Violence Case

An estranged husband posts this message to the partner who has previously obtained a protective order:

image via

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog dick in front of children

****

And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s department
[link: Freedom of Speech, www.wikipedia.org]

Can the man be convicted of a “true threat” in violation of a federal criminal statute or is his speech protected by the First Amendment? Should the prosecution have to prove that he had the “subjective intent” to threaten?

That’s the issue the United States Supreme Court will consider in Elonis v. United States. The jury had convicted Mr. Elonis and the Third Circuit Court of Appeals affirmed. The Court granted review today and there is more discussion on the Constitutional Law Professors Blog here.

Unanimous Supreme Court Says Anti-Abortion Group Can Challenge Ohio Election Law

The Court’s decision in Susan B. Anthony List v. Driehaus issued today rests on the doctrine of “standing” necessary for a party to invoke the power of the federal courts to hear a case. The Court unanimously reverses the Sixth Circuit’s finding that the anti-abortion organization did not demonstrate it had a fear of future action by the Ohio Election Commission. This means that the organization can challenge Ohio’s provision banning false statements in elections as violating the First Amendment.

Maybe the Court’s opinion is more political than it seems? Here’s my discussion on the Constitutional Law Professors Blog.

June 16: International Domestic Workers Day

It’s International Domestic Workers Day. Until relatively recently, the legal rules governing employment could be found under the category “master and servant.” Through feminist activism, women have achieved some semblance of equality and have been able to increasingly inhabit the “master” role, even as we remain over-represented in the “servant” role.

But is mistress-servant an improvement over master-servant?

In my essay, A Servant of One’s Own: The Continuing Class Struggle in Feminist Legal Theories and Practices (available as a free download on srrn here) I consider the role of feminist legal theories in confronting the continuing issue of domestic service.

Part one discusses the terrific book, MRS. WOOLF AND THE SERVANTS: AN INTIMATE HISTORY OF DOMESTIC LIFE IN BLOOMSBURY by Alison Light, a must-read for Woolf scholars and fans, that delves into both the particularities and larger social aspects of Virginia Woolf’s employment of domestic workers.

Part two examines the United States Supreme Court case of Long Island Care at Home v. Coke, upholding a regulation that exempted certain employees in “domestic service” from minimum and overtime wage laws even if they were hired by a company rather than a household. During the Court’s oral arguments, it was clear that the Justices identified with the person receiving care rather than the worker, even though Ms. Coke was present in the courtroom. The regulation remains the subject of activism by domestic workers.

Part three considers the trial and proceedings of another case from Long Island, US v. Sabhani, in which the United States prosecuted and a jury convicted a woman and a man for “forced labor” and “document servitude” of two women from Indonesia.

In the last section, the essay compares the situations of Virginia Woolf and her servants, Long Island Care at Home, Ltd. and its servants, and Varsha Sabhnani and her servants. The essay argues that any relationship categorized as “servant” and “master,” even when the “master” is a “mistress,” and even when the master/servant dichotomy is viewed as a relatively equal contractual relationship rather than one based on status, is deeply problematical. The essay further argues that this “servant problem” needs much more feminist attention.

The Nation has launched a new “roundtable” to be called “The Curve” where “feminists talk economics” with a first post asking “Does feminism have a class problem?” The initial discussion does devote some attention to low-wage workers, but doesn’t confront issues of domestic work. One hopes it will.

image via International Domestic Workers Federation

Constitutional Challenges in Raising the Minimum Wage

Even if NYC is successful in paving the way for a law raising the minimum wage, the legal road can turn rocky.

Seattle’s much-heralded raise of the minimum wage to $15 earlier this month has already been challenged. In a lawsuit by the International Franchise Association, Inc. – – – represented by well-known conservative attorney Paul Clement, there are a raft of challenges including protectionism of local companies (a violation of the “dormant” commerce clause), treating franchised companies “unequally,” and even a First Amendment claim. I’ve discussed the complaint in more detail on the Constitutional Law Professors Blog here.

Challenges to local minimum wage laws are nothing new. As an excellent discussion by Steven Levine from CUNY’s La Guardia and Wagner Archives reminds us, in 1964 “Mayor Robert F. Wagner prioritized increasing the minimum wage from $1.25 to $1.50” as part of the war on poverty. Wagner’s success, however, was short-lived. The New York Court of Appeals (our state’s highest court) concluded that NYC “Local Law 1964, No. 45, fixing higher minimum wage rate than State Minimum Wage Act, was unconstitutional.” The case – – –Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 15 N.Y.2d 604, 203 N.E.2d 652 (1964) – – – affirms the lower courts without even writing an opinion. There is no dissent and it’s apparently so settled that there is no need for any explanation.

Spinner in a Cotton Mill, New England, by Lewis Hine, 1910

But the Seattle lawsuit is not simply concerned with city-state relations. Instead, most of the claims of the complaint would apply to a similar scheme passed by a state and many would apply even if passed by the federal government. It shouldn’t be surprising that corporations have objections to paying workers what has been called a “living wage.” Again, this is nothing new. There’s more about these constitutional issues in the last chapter of my latest book, Dressing Constitutionally, considering slavery, child labor, the garment industry, and contemporary sweatshops.

California State Trial Judge Declares Teacher Tenure Provisions Unconstitutional

In a 16 page “tentative decision” in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution’s provisions on equal protection and provision of education.

Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973), in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a “general diffusion of knowledge” provision. Yet Vergara turns the focus from state resources to “bad teachers” and can tap into anti-teacher and anti-union and anti-government worker sentiments.

More analysis is available on the Constitutional Law Professors Blog here.

Dressing Constitutionally CUNY Podcast

Listen to a conversation with CUNY’s Margaret Ramirez on “Book Beat.”

Our Clothing, and Hair, in the Courts

February 10, 2014 | Book Beat

From Colonial collars and Quaker hats to miniskirts and Muslim headscarves, our clothing — and hair — often have become issues for U.S. courts, says CUNY Law School professor Ruthann Robson. In her new book, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, Robson examines nudity cases, saggy pants in schools and recent battles of transgender teens dressing for the prom.

Robson at CUNY Law

City University of New York Academic Commons